[Federal Register Volume 72, Number 227 (Tuesday, November 27, 2007)]
[Notices]
[Pages 66218-66219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22983]


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DEPARTMENT OF VETERANS AFFAIRS


VA Adjudications Manual, M21-1; Rescission of Manual M21-1 
Provisions Related To Exposure to Herbicides Based on Receipt of the 
Vietnam Service Medal

AGENCY: Department of Veterans Affairs.

ACTION: Notice, with request for comments.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to rescind 
provisions of its Adjudication Procedures Manual, M21-1 (M21-1) that 
were found by the U.S. Court of Appeals for Veterans Claims (CAVC) not 
to have been properly rescinded.

DATES: Comments must be received by VA on or before January 28, 2008.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``Rescission of Manual M21-1 Provisions Related to Exposure to 
Herbicides Based On Receipt of the Vietnam Service Medal.'' Copies of 
comments received will be available for public inspection in the Office 
of Regulation Policy and Management, Room 1063B, between the

[[Page 66219]]

hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays). 
Please call (202) 273-9515 for an appointment. In addition, during the 
comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 273-7210.

SUPPLEMENTARY INFORMATION: This rulemaking is necessitated by the 
opinion rendered by the CAVC in Haas v. Nicholson, 20 Vet. App. 257 
(2006), notice of appeal filed, No. 07-7037 (Oct. 26, 2006). In that 
opinion, the CAVC concluded that certain provisions of VA's 
Adjudication Procedures Manual M21-1 (M21-1) were substantive 
provisions that had not been properly rescinded. Id. at 276-78. We have 
appealed Haas, and if we are successful on appeal, this rulemaking will 
be withdrawn. However, in the event that we do not prevail on appeal, 
we now take action to properly rescind the provisions.
    In Haas, the CAVC held that a 1991 M21-1 provision required VA to 
concede that Mr. Haas had served in Vietnam, and was presumed to have 
been exposed to herbicides during service, because he had received the 
Vietnam Service Medal (VSM). Haas, 20 Vet. App. at 270-72 (quoting in 
full and discussing M21-1, part III, para. 4.08(k)(1)-(2) (1991)). In 
2002, VA had issued a new M21-1 provision that more clearly restated 
the 1991 provision, advising that receipt of the VSM could indicate 
service on land in Vietnam but, by itself, was not proof of such 
service. M21-1, pt. III, para. 4.24(e)(1)-(2), change 88 (Feb. 27, 
2002). However, the CAVC held that VA's 2002 revision of the M21-1 was 
ineffective because VA had not followed the notice and comment 
procedures of the Administrative Procedure Act, 5 U.S.C. Sec.  553(a). 
Haas, 270 Vet. App. at 275-78.
    As interpreted by the CAVC, the 1991 M21-1 provision requires VA, 
in at least some circumstances, to concede service in Vietnam, and thus 
herbicide exposure, based merely on the receipt of the VSM, even if all 
other evidence indicates that the veteran did not serve on land or on 
inland waterways in Vietnam and therefore was exceedingly unlikely to 
have been exposed to herbicides as a result of Vietnam service. VA 
revised the M21-1 in 2002 because, although receipt of the VSM is an 
indication of possible service in Vietnam, it is not definitive or 
conclusive evidence of such service. It is inappropriate to include 
receipt of the VSM as a sole criterion for the presumption of exposure 
to herbicide agents due to service in Vietnam because a veteran may 
have received this medal for service in locations other than Vietnam. 
(The VSM was awarded to all members of the Armed Forces who served 
between July 3, 1965, and March 28, 1973, either: (1) In Vietnam and 
contiguous waters and airspace thereover; or (2) in Thailand, Laos, or 
Cambodia, or airspace thereover, in direct support of operations in 
Vietnam. See Army Reg. 600-8-22, para. 2-13.) The 2002 revision was 
intended to clarify VA's view that receipt of the VSM does not require 
or permit VA to ignore other evidence indicating that a veteran did not 
serve in the Republic of Vietnam. Because the CAVC's interpretation of 
the 1991 M21-1 provision does not accord with VA's intent in issuing 
that provision, we propose to rescind it.
    The M21-1 is an internal manual used to convey guidance to VA 
adjudicators. It is not intended to establish substantive rules beyond 
those contained in statute and regulation. Neither the 1991 nor the 
2002 M21-1 provision, nor any intervening revision to such provisions, 
was intended to establish a substantive rule. Further, the 1991 
provision was not intended to convey the rule the CAVC imputed to that 
provision, treating the VSM as conclusive evidence of service in 
Vietnam even if other evidence would support a finding that the veteran 
did not serve in Vietnam. However, because the CAVC held that the 1991 
M21-1 provision established a substantive rule, and because that rule, 
as interpreted by the CAVC, is inconsistent with VA's intent, we are 
proposing to rescind the M21-1 provision.
    We note as well that we will soon be revising Sec.  
3.307(a)(6)(iii) to clarify VA's interpretation of the statutory 
authority governing service in Vietnam for purposes of the presumption 
of herbicide exposure. In view of the confusion created by the M21-1 
provisions in the Haas case, we believe it is preferable to rescind the 
M21-1 provisions relating to proof of service in Vietnam, including the 
1991 provision at issue in Haas, the 2002 clarifying revision to that 
provision, and intervening revisions. This will enable VA to clarify 
and ensure that its interpretation of the governing statutory 
provisions set forth in its regulation and to minimize the possibility 
of a perceived or unintended inconsistency based on VA's internal 
manual.
    Hence, VA proposes to rescind the following manual provisions 
describing service in Vietnam for the purposes of the presumption of 
exposure to herbicides: M21-1, pt. III, para. 4.08(k)(1)-(2) (November 
8, 1991); M21-1, pt. III, para. 4.24(g)(1)-(2), change 23 (October 6, 
1993); M21-1, pt. III, para. 4.24(g)(1)-(2), change 41 (July 12, 1995); 
M21-1, pt. III, para. 4.24(g)(1)-(2), change 76 (June 1, 1999); M21-1, 
pt. III, para. 4.24(e)(1)-(2), change 88 (February 27, 2002).

    Approved: November 19, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.
[FR Doc. E7-22983 Filed 11-26-07; 8:45 am]
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